43 comments:

While I agree that everybody needs to follow the rules, and if Ivanka is unable or unwilling to follow the rules she shouldn't be able to work with government information, from what I can see she never sent any emails containing classified information, or kept classified information on her personal devices. Hillary Clinton did both of those things, which are far worse offenses. So the cases are not quite the same.

To give a sense of the comparison, an ordinary Federal employee who did what Ivanka did would be either counseled, and then fired if they didn't fix the problem, or fired immediately if the initial problem were sufficiently egregious. But an ordinary Federal employee who did what Hillary did would be in a federal prison for a long time (I believe the minimum possible sentence is 10 years).

> an ordinary Federal employee who did what Hillary did would be in a federal prison for a long time

Then why hasn't Hillary been prosecuted by the Trump justice department?

BTW, I agree with you that this story is more about optics than substance. But (1) optics matter in politics, and (2) there's a different story with a lot more substance that everyone seems to be ignoring because it doesn't have the sexy optics:

Peter: "an ordinary Federal employee who did what Hillary did would be in a federal prison for a ... minimum possible sentence is 10 years"

So when the head of the investigation, and the head of the FBI, James Comey announced that he recommended no criminal charges against Hillary Clinton ... when he explicitly and publicly reported: "To warrant a criminal charge, Mr. Comey said, there had to be evidence that Mrs. Clinton intentionally transmitted or willfully mishandled classified information. The F.B.I. found neither, and as a result, he said, “our judgment is that no reasonable prosecutor would bring such a case.”"

...your conclusion, instead, is that Comey was a partisan Democratic hack, who immorally violated his oath of office for the political gain of his favored candidate. Is that correct? You believe that his public statement was a lie, that the FBI did find evidence of intentional and willful classified mismanagement, and that FBI Director Comey criminally withheld and suppressed that information (and somehow got the rank and file of the FBI to conspire together with him).

Is that correct? This is an open-and-shut case for you, involving pure corruption at the highest levels?

My guess: because there is a long-standing unwritten policy of not prosecuting high officials (basically, the ones that have to be confirmed by the Senate) for things that ordinary Federal employees would be prosecuted for, and not even Trump has gotten far enough outside the box to break that unwritten rule.

@Don:.your conclusion, instead, is that Comey was a partisan Democratic hack, who immorally violated his oath of office for the political gain of his favored candidate

Since the net effect of Comey's handling of the Clinton email issue (specifically bringing it up again a few days before the election after he had said several months before that there was nothing worth prosecuting) would seem to have benefited Trump if it benefited anyone, this hypothesis would appear to also require one to believe that Comey is an idiot.

You believe that his public statement was a lie, that the FBI did find evidence of intentional and willful classified mismanagement

As I noted in response to Ron a little bit ago, I think there is an unwritten rule that officials at Senate confirmation level get treated differently than ordinary Federal employees.

Also, I didn't say "intentional and wilful classified mismanagement". Clinton's general responses to the issue seem to be (1) she wasn't aware of what the markings like (C) for "Confidential" meant, and (2) many of the items were not marked as classified (or were classified retroactively later on) so she didn't know they were classified when she sent the emails. The FBI might have found those statements credible (though they don't reflect well on her intelligence or her attention to detail--but then the FBI agents involved might have had that opinion of her already), in which case she would at most have been guilty of ignorance and possibly negligence.

My point is simply that, if an ordinary Federal employee were to offer the same response in the same circumstances, they would still be in Federal prison. Every Federal employee gets trained on what classified markings mean, that if you have a bunch of information some of which might be classified you treat it all as classified until you can get a version that has specfic markings so you know what's classified and what isn't, and that you don't transmit classified information on any device other than ones specifically intended for the purpose. (Which also means, btw, that even an official mobile phone used by such an employee for ordinary, unclassified business will *not* be used for transmitting classified messages; there has to be a separate device for that.) So none of Clinton's responses would get an ordinary Federal employee off the hook. But they did get her off the hook.

> there is a long-standing unwritten policy of not prosecuting high officials

That may be true, but that did not stop Trump from campaigning on a promise of breaking that unwritten policy. And Trump has shown absolutely zero reluctance to break dozens of other norms and conventions, so why would he adhere to this one in particular?

In fact, Trump has not adhered to this unwritten rule. He has tried to get Hillary prosecuted, and publicly expressed frustration that he has failed:

[quote]Of the tens of thousands of emails investigators reviewed, 113 contained classified information, and three of those had classification markers. FBI Director James Comey has said Clinton should have known that some of the 113 were classified, but others she might have understandably missed.

Comey said the Justice Department shouldn’t prosecute Clinton because there isn’t enough evidence that she intentionally mishandled classified information. FBI investigators didn’t find vast quantities of exposed classified material, and they also did not turn up evidence that Clinton intended to be disloyal to the United States or that she intended to obstruct justice.

However, he called Clinton’s email setup "extremely careless."[/quote]

Peter: "I think there is an unwritten rule that officials at Senate confirmation level get treated differently than ordinary Federal employees."

Come now, Peter. You seem to be trying to avoid saying explicitly what you keep implying. Why don't you just state your claim?

You believe that all (?) high-level justice department officials routinely violate their oaths of office. They take an explicit oath to apply the law fairly, to run the country as a nation of laws and not of mere men, that the law applies to everyone no matter their position. That is the explicit position of the US Department of Justice. But you believe that everyone in charge lies when they take this oath, and instead follows an illegal and unconstitutional "unwritten rule" to treat cabinet officers differently.

"I didn't say "intentional and willful classified mismanagement""

Yes, I know you didn't. But you said: "an ordinary Federal employee who did what Hillary did would be in a federal prison for ... the minimum possible sentence is 10 years". Meanwhile, James Comey himself said: "To warrant a criminal charge, Mr. Comey said, there had to be evidence that Mrs. Clinton intentionally transmitted or willfully mishandled classified information. The F.B.I. found neither"

So, you must also logically believe that either (1) James Comey was lying about the "intentional and willful" standard; or else (2) James Comey was lying about the claim that the FBI found no evidence of such action.

Comey made a public statement, in a report to Congress, about why he did not recommend prosecution. You (clearly) believe this statement was a lie, that the real reason was your "unwritten rule", and that Comey not only broke his oath to uphold the laws of the land, but also perjured himself to Congress (and the American public).

Why are you playing so coy about it? Just come out and directly say that you believe Comey is a lying, perjuring oath-breaker.

First, the FBI director doesn't make decisions on whether or not to prosecute. US Attorneys who are prosecutors do. The FBI director might make recommendations, but it's not his decision.

Second, all prosecutors exercise discretion in whom they choose to prosecute. Our laws are written so broadly that most people in the US have probably violated laws and could, by the letter of the law, be prosecuted. But the government only has finite resources and has to choose who it wants to actually go after (and of course political considerations play into that). I have no trouble believing that Federal prosecutors would say that a Secretary of State's behavior does not merit prosecution, whereas they would say that similar behavior on the part of an ordinary Federal employee would. That doesn't imply any violation of their oath of office, unless you actually believe that oath requires them to strictly prosecute every single person who violates the letter of a Federal law.

Third, not all Federal statutes or regulations regarding classified information have the "knowing and wilful" language (or "intentional" or words to that effect) in them. At least one, 18 USC 793[1], includes "gross negligence" as well. Of course that requires someone to judge what constitutes "gross negligence". And that judgment might be made differently for a Secretary of State than for an ordinary Federal employee.

Btw, just to reiterate my original position, I think everyone in government ought to be held to the same rules. For ordinary government business, not involving any classified information, there is a certain set of rules (things like "don't use your personal devices for government business", what records you need to store and for how long, etc.); violating them is not against the law, but it can jeopardize your employment. For classified information, there is a stricter set of rules, and there are actual Federal statutes involved, instead of just administrative regulations.

As I understand it, Ivanka Trump only violated the first set of rules (about ordinary government business). So asking whether she is going to be prosecuted, by implied analogy with calls for Hillary Clinton to be prosecuted, is a mistaken analogy, as there are no Federal statutes involved at all with the first set of rules, so none of the things we've been arguing about with respect to Clinton (about whether or not she actually violated Federal laws regarding classified information) even come into play.

> there are no Federal statutes involved at all with the first set of rules

That's not true. There is the Federal Records Act.

> Ivanka Trump only violated the first set of rules (about ordinary government business).

And you know this how? Has anyone gone through the emails in her personal account to see if they contain any classified data?

> So asking whether she is going to be prosecuted, by implied analogy with calls for Hillary Clinton to be prosecuted, is a mistaken analogy

No, it isn't. There is a clear double-standard in the level of scrutiny that Donald Trump called for with respect to Hillary Clinton, and the level of scrutiny that he is now calling for with respect to his daughter.

Yes, you're right, that is a Federal statute. But all it really says is that each government agency needs to establish regulations about its records. It's not anywhere as specific as the statutes about classified information. (It also imposes no criminal penalties for violations.) But you are correct that I was mistaken to say there are no Federal laws involved.

And you know this how?

I'm going by the Washington Post article you linked to, which says that a spokesman for Ivanka's counsel said none of her emails contained classified information. (That article also describes a number of significant differences between her case and Clinton's, apart from the classified information issue.) If you have other links that have information indicating that Ivanka did in fact have access to classified information, by all means give them.

Based on my understanding of what Ivanka is doing in the administration, I think it's highly likely that she has never come anywhere near any information that has any possibility of being classified. The vast majority of people who work in the government, even in the White House, don't. And most of those who do only see it very occasionally; not many jobs require access to classified information in the ordinary course of duty. But the job Hillary Clinton had, Secretary of State, is one of those rare jobs.

There is a clear double-standard in the level of scrutiny that Donald Trump called for with respect to Hillary Clinton, and the level of scrutiny that he is now calling for with respect to his daughter.

And I still think that is not a "double standard", but a reflection of the differences in what these two people did.

And just to reiterate one more time: I think both Ivanka and Hillary (and many other government officials over the years, some in high positions--two of the people listed in the nbcnews article I linked to before were CIA directors, fer cryin out loud) should have known better and shouldn't have been allowed to give lame excuses for why they didn't follow the rules. I just don't think their cases are exactly the same.

> a spokesman for Ivanka's counsel said none of her emails contained classified information

I see. So because Ivanka's lawyer's spokesman said it, it must be true? No investigation needed?

I'm pretty sure that if I dig through the archives I can find a similar claim coming from Hillary's people.

Also, don't forget that many of the "classified" documents on Hillary's server were not in fact classified at the time. They were only classified after the fact. How do you know that the exact same thing cannot happen with Ivanka's emails?

Yes, the two situations are not exactly identical; no two situation ever are. Nonetheless, there is a pretty clear double standard here.

@Ron:So because Ivanka's lawyer's spokesman said it, it must be true? No investigation needed?

You gave the article as your only source. The spokesman's quoted statements are the only information the article gives about classified information. If you suspect that the spokesman was lying or mistaken, that doesn't mean you have evidence that Ivanka's emails actually did contain classified information. It means you don't know one way or the other. That doesn't entitle you to make comparisons as if your suspicion were fact.

many of the "classified" documents on Hillary's server were not in fact classified at the time. They were only classified after the fact. How do you know that the exact same thing cannot happen with Ivanka's emails?

If you find a source that says this happened, by all means post a link. Unless that happens, as above, you don't know. So you shouldn't be talking as if you do.

Ron said: "many of the "classified" documents on Hillary's server were not in fact classified at the time. They were only classified after the fact"

Peter asked: "If you find a source that says this happened, by all means post a link."

I don't think it's that hard to find. I remember this being reported at the time. For example, here's PolitiFact: "Classified after the fact ... None of the emails ... contained classification markings at the time they were sent ... Federal agencies can classify information after the fact ... We know that officials did that in the case of emails on Clinton’s private server. ... There is no evidence Clinton knowingly sent or received classified information."

@Don:Peter asked: "If you find a source that says this happened, by all means post a link."

That wasn't in reference to some of Hillary's emails being classified after the fact. I am not disputing that that happened. It was in reference to the possibility Ron raised that some of *Ivanka's* emails might be classified after the fact. We have no knowledge that that has happened.

Also, some of the Hillary Clinton emails contained information that was classified at the time she sent them. (Some was marked, some was not.) We have no knowledge that any of Ivanka's emails did.

Ivanka's case being "clearly different" seems implausible

Your opinion differs from mine, based on the evidence we currently have. If further evidence comes to light in the future, we can update based on that.

@Ron:the reason we have no knowledge is because there has been no investigation

So you're saying Trump should call for an investigation? I thought you were saying that Trump should call for her to be locked up. If you're saying there should be an investigation, I agree. But that isn't what your article said.

> I thought you were saying that Trump should call for her to be locked up.

Seriously? Are you really that incapable of recognizing rhetorical irony?

No, I am not saying that Trump should call for Ivanka to be locked up. I am pointing out how absurd and hypocritical it is for him to call for Hillary to be locked up and not Ivanka. At the risk of stating what should be ridiculously obvious to everyone (but apparently isn't) neither one of them should be locked up. (But Ivanka should probably be fired.)

"When she became secretary of state, the controlling interpretation of the 1950 Federal Records Act was that officials using personal email accounts must ensure that official correspondence is turned over to the government. Ten months after she took office, a new regulation allowed the use of private emails only if federal records were 'preserved in the appropriate agency recordkeeping system'"

Hm. Looking at your link and other articles, it seems like the system in general is a lot more of a mess than I thought. Some agencies are apparently a lot more permissive than mine is. Disappointing, but unfortunately not surprising.

In all my time as a Federal employee, I've never found having separate mobile devices for home and work to be a significant problem. So I don't find "convenience" arguments persuasive. Just carry two mobile phones and let the government own and configure the work one, fer cryin out loud. Maybe at some point we'll get there.

But this is not about what the rules are or were. This is about what Donald Trump said that they *should be* when he was running for president. And he said, loudly, repeatedly, and unambiguously, that using a private email server should be considered such a serious offense that it justifies imprisoning people. And I am shocked -- shocked! -- to learn that he apparently didn't quite mean what he said.

“classified information contained in Clinton’s emails was in fact compromised by foreign intelligence services, and that Clinton had recklessly emailed President Barack Obama using her unsecured personal email from the territory of a hostile foreign adversary.”

“FBI knew with certainty at the time that hostile actors had in fact gained access to classified information via Clinton’s emails. According to the inspector general, a special review of the Clinton email investigation in 2017 by the office to the FBI’s Inspection Division found that, before Comey’s 2016 statement, “the FBI ... successfully determined classified information was improperly stored and transmitted on Clinton’s email server, and classified information was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means” (emphasis added).”

‘Clinton “used her personal e-mail extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries.” . . . “That use included an email exchange with the President while Secretary Clinton was on the territory of such an adversary.”’

Hillary used her own email server to avoid future Freedom of Information requests. Code names were also used for the same reason — Chelsea was “Diane Reynolds” (but stupidly ended her emails with “Love, Chelsea”).

I'll ask you the same question I asked Peter, which he couldn't answer: if this is true, why hasn't the Trump administration made good on his campaign promise and locked Hillary up? If there really is slam-dunk evidence that she violated the espionage act (or some other law), why not prosecute her?

Either way, none of this is an argument against investigating Ivanka. Or Trump himself, who is still (AFAICT) using an insecure cell phone.

@Ron:>: if this is true, why hasn't the Trump administration made good on his campaign promise and locked Hillary up? If there really is slam-dunk evidence that she violated the espionage act (or some other law), why not prosecute her?

Unknown at this time. I would speculate someone, or several individuals, are protecting her. Who and why perhaps will come out in the fullness of time.

1:51 min:Gowdy: False exculpitory statements -- they are used for what?

Comey: Either for subsequent prosecution or evidence of intent in a criminal prosecution.

Gowdy: Exactly. Intent and consciousness of guilt, right? . . .

. . . .5:08 minGowdy: . . . you mentioned there is no precedent for criminal prosecution. My fear is there still isn't. There is nothing to keep a future Secretary of State or President from using this exact same email scheme -- or their staff. My real fear is this . . . this double track justice system that is rightly or wrong perceived in this country, that if you are a private in the army and you email yourself classified information, you will be kicked out. But if you are Hillary Clinton and you seek a promotion to Commander In Chief, you will not be. What I hope you can do today . . . [is make] the reasonable person understand why she is treated differently that the rest of us would be.

No, it's not that we disagreed. It's that your theory is objectively false:

"My guess: because there is a long-standing unwritten policy of not prosecuting high officials (basically, the ones that have to be confirmed by the Senate) for things that ordinary Federal employees would be prosecuted for, and not even Trump has gotten far enough outside the box to break that unwritten rule."

There have been a number of prosecutions of Senate-confirmed officials throughout history. Most recently, former CIA director David Patraeus (confirmed by the Senate in 2011) was prosecuted (and convicted!) for -- wait for it! -- mishandling classified information!

My theory is not "high officials never get prosecuted at all". My theory is "the threshold for prosecuting high officials is higher than the threshold for prosecuting ordinary Federal employees".

Yes, high officials have been prosecuted in the past. But that doesn't disconfirm my theory. To test my theory, you need to compare the threshold at which ordinary Federal employees get prosecuted (or something equivalent, like being charged and pleading guilty) with the threshold at which high officials get prosecuted (or something equivalent). The example I gave earlier in this discussion was Bryan Nishimura, who seems to have done things similar to what Hillary did (i.e., no intent to mishandle information, but used personal email and some classified emails were sent that way), and was charged and pled guilty.

Purely on political grounds, it would seem quite plausible (though not very comforting to someone who believes in the rule of law) that the threshold for prosecuting high officials would be higher than for prosecuting ordinary Federal employees, since any prosecution of a high official has political implications that a prosecution of an ordinary Federal employee does not.

> My theory is "the threshold for prosecuting high officials is higher than the threshold for prosecuting ordinary Federal employees".

I don't doubt that this is true, but that's not the question. The question is whether this can account for the Trump administration not prosecuting Hillary. The answer to that is clearly no. If the privilege conferred by Senate confirmation was not enough to protect Patraeus from being prosecuted by the Obama justice department, I see no reason to believe that it's suddenly enough to protect Hillary from being prosecuted by the Trump justice department.

Also, Trump has no respect for rules. He proudly violates rules, both written and unwritten, as a natter of course. Even if there were an unwritten rule that somehow protected Hillary but not Patraeus, I see no reason to believe that Trump would choose that particular rule to adhere to above all the others.

@Ron: If the privilege conferred by Senate confirmation was not enough to protect Patraeus from being prosecuted by the Obama justice department, I see no reason to believe that it's suddenly enough to protect Hillary from being prosecuted by the Trump justice department.

This would be valid reasoning if what Petraeus did was similar to what Hillary did. But it wasn't; what Petraeus did was clearly much worse. Petraeus deliberately and intentionally provided classified material to an unauthorized person. Nobody has accused Hillary of doing that.

As I have already said, twice now, the case that seems most similar to Hillary's in the sources I can find is that of Bryan Nishimura. He was charged and pled guilty; Hillary was not even charged.

Note at 0:40 Lynch says Bill talked about the golf he played in Phoenix.

No tourists play golf in Phoenix in June. Only the locals play, as green fees are half price. On June 28, 2016 the low in Phoenix was 91 F and the high was 111 F. A 70 year old man with a quintuple heart bypass surgery isn't going to be hitting the links during the summer in Phoenix.